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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, December 26, 2012

School district was deliberately indifferent to endless racial harassment

School districts are liable for student-on-student harassment if they are deliberately indifferent to the problem. This legal standard contrasts with the more plaintiff-friendly negligence standard governing sexual harassment in the workplace. The Supreme Court devised the higher standard in part because kids do tend to tease each other at school and the school cannot be on the hook for everything. But these cases are still winnable. The plaintiff in this racial harassment case won $1 million in damages.

The case is Zeno v. Pine Plains Central School District, decided on December 3. My office represented the plaintiff at trial and on appeal. Anthony was racially harassed by various classmates for 3.5 years after he moved to Dutchess County from Long Island. The Second Circuit ruling details the harassment on a year-by-year basis, and if you think that we are beyond racial hatred in this country, take a look at pages 2-14 of the opinion. The verbal and physical harassment -- in the classroom, in the hallways, on the bus, in the cafeteria, and elsewhere -- was relentless. Anthony and his mother repeatedly complained to the school
about the harassment. The family's lawyer and the local NAACP and Dutchess County Human
Rights Commission also complained about it.

The question on appeal was whether the jury could find that the district was deliberately indifferent to the harassment despite punishing individual offenders and sponsoring an anti-bullying seminar and diversity program. (I will talk about the damages portion of the opinion in a later post). The Second Circuit (Chin, Cabranes and Livingston) writes, "In some circumstances, prompt disciplinary action against a student's identifiable harassers may show that a school district was not deliberately indifferent. The sufficiency of a response, however, must be considered 'in light of the known circumstances,' and as the 'known circumstances' change, the sufficiency of a response may also have to evolve." The Court of Appeals has never quite put it this way before, directing schools to reconsider their approach to the harassment if it gets worse or the remedial measures are not working. It cites a Sixth Circuit ruled to the effect that "where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances."

Here, five circumstances should have informed the District's continued response to student harassment of Anthony. First, it knew that disciplining Anthony's harassers -- through suspensions or otherwise -- did not deter others from engaging Anthony in serious and offensive racial conduct. (During his sophomore year alone, Anthony was subject to eight separate incidents of harassment.) Second, the harassment directed at Anthony grew increasingly severe. Of the eight incidents that occurred during his sophomore year, two were violent, three were threats on his life, and two resulted in Orders of Protection against the students involved. Third, the disciplinary action had little effect, if any, on the taunting and other hallway harassment, which persisted until Anthony left SMHS, three-and-a-half years after he arrived. Fourth, the District knew that the harassment predominantly targeted Anthony's race and color. And fifth, as early as November 2005, the Dutchess County HRC and N.A.A.C.P. offered the District both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series.

The jury could find that the District's remedial response was inadequate and deliberately indifferent for a variety of reasons. While it disciplined many of the students who harassed Anthony, "it dragged its feet. before implementing any non-disciplinary remedial action -- a delay of a year or more. While many cases address delays preceding a school's initial response, once a school is aware of its ineffective response, a delay before implementing further remedial action is no less problematic. At some point after Anthony's first semester, the District should have done more, and its failure to do more "effectively caused" further harassment." Also, "the District's additional remedial actions were little more than half-hearted measures. For example, it coordinated mediation, but did not inform Mrs. Zeno when or where it would be held. Its additional programs either (1) did not focus on racial bias or prejudice, or (2) made attendance optional. This was evident in the District's training for students, parents, and teachers; it was for one day only and focused on bullying and sexual harassment, rather than racial discrimination."

These programs were not enough. The Court writes, "The record indicates that these programs were selected in lieu of the free shadow or racial sensitivity training offered by the Dutchess County Human Rights Commission and N.A.A.C.P. in November 2005, almost a year earlier and only nine months after Anthony was first harassed. Although actually eliminating harassment is not a prerequisite to an adequate response, the District's actions could not have plausibly changed the culture of bias at SMHS or stopped the harassment directed at Anthony." Moreover, the jury could find that "the District ignored the many signals that greater, more directed action was needed."

The deliberate indifference test is still evolving. The Second Circuit borrowed its reasoning from other circuits. That Anthony endured more than three years of harassment did not help the school's position on appeal. Nor did it help that the school ignored certain remedial options that could have made the harassment stop. Liability is affirmed.